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Let the husband render to his wife what is her due, and likewise the wife to her husband. A wife has no authority over her body, but her husband; likewise the husband has no authority over his body, but his wife. You must not refuse each other, except perhaps by consent, for a time, that you may give yourself to prayer, and return together again lest Satan tempt you because you lack self-control. But I say this by way of concession, not command. (I Corinthians 7:3-6)

And where a woman under the protection of a husband (coverte de baroun) follows any craft within the said city by herself alone, with which the husband does not interfere, such a woman shall be charged as a single woman (femme sole) concerning everything which touches her said craft. And if the husband and the wife are impleaded, in such a case the wife shall plead as a single woman in a court of record, and she shall have her law and other advantages by way of plea like a single woman. And if she is condemned, she shall be committed to prison until she makes appeasement; and neither the husband nor his goods shall be in such a case charged or impleaded. (Liber Albus 204-05)

A married woman shall be deemed a femme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity, with or without her husband being joined as a party. (Missouri Revised Statutes, Section 451.290, August 28, 1997)

Late medieval English urban communities, like contemporary cities, were centers of trade more than of manufacture, although it is somewhat anachronistic to assume modern notions of differentiation between the two. Production of goods--ale, cloth, clothing, virtually everything except agricultural products--took place primarily in the home, or in small shops which served both businesses and the household, and the merchandising of these wares often directly took place between the manufacturer of such goods and the buyer. As this synthesis of production within the household and merchandising from the household grew, so too did the social impact of these self-made merchants, thanks to the growing influence of English guilds. The population of a city like London, for example, consisted of a wide variety of professions, including full time civil servants (like Chaucer), a large contingent of clerical bureaucrats (like Langland), lawyers, students, and the like. But by far the major segment of the population consisted of its industrial, commercial, and service-oriented members, in other words, its merchant classes.⁽¹⁾ The birth of urban merchants in England gave rise to a form of post-partum depression, for, while they controlled a vast array of resources, their power was not institutionalized in any way like the power of the aristocracy or of the clergy.

The genesis of merchants in English urban culture, like most births, was both bloody and productive, filled with the sounds of wailing and the promise of growth. The vigor of merchants created an economic power base upon which the government could, and did, rely to support national growth, in the form of economic prosperity and as a cache to fund military actions, both of which would eventually turn England into a major international power. It also caused some consternation in an already declining medieval feudal hierarchy. This fourth estate--the merchant classes emerging among the traditional aristocratic, ecclesiastical, and peasant estates--given its access to and control of resources, did not fit into the traditional medieval tripartite estates system. And to further complicate the issue, the dissolution of a clear boundary between domestic and mercantile activities meant greater opportunity for all members of the domestic household, especially women, to participate in merchant activities. Among the most significant factors affecting late medieval merchants and the systems governing their social and cultural involvement were the opportunities afforded women by trade and merchant activities. These opportunities included social advancement, economic stability and independence, as well as freedom to critique current conditions while under the aegis of the very systems within which they operated.

A process of inscription therefore ensued, usually in the form of contemporary legal dictates, to delineate mercantile power in general, and occasionally female mercantile activity specifically. Within those tracts, a peculiar issue emerged. Since mercantile activity was so closely associated with familial duty, those laws, writs, statutes, etc., often transgressed the boundaries of public and domestic life and impinged upon the traditional sanctity of the marital union. The focus of this work is to demonstrate how one such legal term, femme sole, emerged and changed in the late thirteenth through early fifteenth centuries, and to outline the ways in which that classification disrupted medieval notions of marital obligation and equity associated with the marriage debt.

By the late fourteenth century, the concept of the femme sole had been firmly established in English common law and society. The term femme sole, simply put, referred to women who conducted business on their own. The term's application extended far beyond its literal translation of "woman alone" or "single woman" to encompass married women who conducted their own businesses apart from their husbands. The term was used to differentiate them from the typical assignation of coverte de baron,⁽²⁾ or "under the protection of the husband." Legally, wives maintained the same rights as minors when it came to most common law activities, so that the husband, le baroun, was responsible legally and economically for the actions of the wife. This relationship was codified through a traditional, and by the late fourteenth century, somewhat outdated, feudal hierarchy which positioned the husband as feudal lord (baron) to the wife, so that, for example, if a wife were to kill her husband, rather than committing murder, she committed an act of petty treason against the state for killing her feudal lord. But wives who maintained their own "mysteries," plied their own trade, followed their own craft, taught their own apprentices, or marketed their own wares, were said to be trading, or acting, as femmes soles. The term femme sole legitimized women's economic role to some extent within the medieval legal system, but it also resulted in establishing a different economic structure in the family, wherein the autonomy of women conducting business disrupted medieval ideas of marital and conjugal debt.

The general role and definition of femme sole is relatively common knowledge among medievalists. What is interesting to note, however, is the general lack of knowledge concerning the origins and social history of the emergence of that term, especially in England in the Middle Ages. Kay Lacey, for example, points out that, because a married woman could not own chattel, she could not enter into contractual negotiations. "The common law principle was that femme coverts were unable to make contracts,[sic] or even buy goods without their husbands' prior assent" (41). She goes on to say that the femme sole trader was active by the fifteenth century and covered urban wives conducting business (41-43). Not every wife who conducted business was considered (or perhaps took advantage of) acting as a femme sole trader. Rarely, in Shrewsbury for example, did a married woman appear in court without her husband, which might be an indication, according to Diane Hutton in "Women in Fourteenth Century Shrewsbury," that femme sole status did not exist there (86), whereas it was common in places like London and Lincoln.

Women's participation in mercantile activity in England, and indeed throughout Europe, seemed to increase after the middle of the fourteenth century, perhaps due to the general shortage of labor caused by the plague of 1348, and this participation seemed to remain at high levels through the middle of the next century. Women participating in mercantile and guild activities in London enjoyed special privileges from London's peculiar borough status and its position as a major city, port, and governmental seat; these advantages gave rise, however, to serious mercantile repercussions when the crown threatened to remove those civic offices and the wool staple to other coastal cities more central to export to the continent or to the war effort. Women engaged in market activities were, like men, also bound by both common law and canon law. And while most legal activities which affected mercantile behavior were controlled by common law, canon law could impose upon many mercantile situations, especially those involving marriage, defamation, adultery, and perjury. Common law appeals were relatively rare, since most secular motions were covered by either borough customs or city ordinances, neither of which officially belonged to common law litigation.

Common law's interest in women's activities was devoted primarily to their rights either as wives or widows, focusing on issues of dowry and property. When a woman married, her husband gained control of any real estate formerly in the wife's name, as well as any other property and assets she brought into the marriage; but she did not entirely forgo her interest in such material. In fact, she was still, legally, the owner of such property, but given the husband's legally dominating position, he had almost complete use and control of that property during the marriage. In a very real and legal sense, he became her guardian, just as if she were a minor; she was therefore generally subject to any actions against both her person and her goods, except where such action was circumscribed by law--a privilege femme sole status would allow. Whereas dowry refers to property brought into a marriage by a wife, dower referred to that portion of an estate which fell to the wife upon her husband's death, property legally hers in perpetuity or until such time as the widow remarried, thus turning her dower into a dowry. Issues of dower and dowry were important for both common and canon law, since marriages were performed privately (not in a church) as well as, as the Wife of Bath would put it, "at chirche dore" (WoB 6).

Canon Law's main contribution to the legal status of wives was to accord them the right to make testament. A person's will was considered a common law action which expressed the desires of the person regarding real estate disbursement. A testament, on the other hand, was devoted to the disbursement of all other goods and chattels. Since a woman could not own real estate, she could not make a will. Since she had a great deal of control over personal goods however--especially remnants of dower--she could legally, under canon law, dispose of those goods as she saw fit to do. But because she could not own land, a wife was officially unable to make real estate contracts. Marriage partners had considerable power to contract for their own marriage under canon law, even without the permission of their parents or lords,⁽³⁾ which meant that the marriage contract was specifically internal; it focused primarily on the relationship between the husband and wife rather than on their individual relationships to parents or feudal lords. The significance of femme sole status was to allow a woman to obviate the need for her spouse's participation and agreement in mercantile contracts. Femme sole status also allowed a wife to act as her husband's agent if he were not present. This status therefore granted wives significant power to act on their own, with or without their husbands, in both mercantile and legal realms, and as such it represents an extremely important historical moment in the history of women's power--not merely in the Middle Ages, but throughout social history (although that power was to be eventually erased by the return of women from a wide range of professions to almost exclusively domestic ones).⁽⁴⁾ But that opportunity for women to conduct themselves as femme sole upset the traditional family economy characterized by the marriage debt and its implications of mutual financial dependence and ownership

The study of the history of women in the Middle Ages--indeed, throughout history--could be characterized by the study of women's work, especially work within their families. Women played a considerable role in both production and merchandising in medieval urban (and to a lesser extent rural), despite the fact that most laws and customs related to women's work were confining and oppressive, focusing primarily upon their role within a family. Then as now, there were occupations which were so dominated by women that they became considered women's occupations, and therefore perpetuated a matrilineal continuation of such seemingly gendered occupations. While many of these occupations were domestic in nature--the most recognizable is brewing, an occupation which was dominated by women and could be conducted at home along with more traditional housekeeping duties--virtually every profession had its female constituency. Eileen Power states that these domestic professions, especially for married women, were necessary only for supplementary wages (Medieval Women 53), a statement supported by more recent analyses as well.⁽⁵⁾ But, as the emergence of the femme sole attests, and as I hope this study shows, such merchant activity was more than merely supplemental to how women participated in contemporary life; it was essential to the construction of individual women's power in a firmly established system of patriarchal domination. I am particularly interested in how the emergence of the femme sole problematized traditional notions of equity within a relationship, especially the implied and explicit mutual obligations of the marriage contract dictated by the medieval notion of the marital or conjugal debt.

The apostle Paul's mandate in I Corinthians for mutual sexual obligation had a strong influence on the general notion of marital relationships and the legal stipulations regarding those relationships. The conjugal debt was explicitly characterized by mutual obligation, since neither party could withhold "payment" without the consent of the partner, but the realities of that mutuality are suspect. It is easy to see how Paul's statement could be superimposed upon a wider, more mercantile, arena, to include the material obligations of a husband and wife; since the marriage contract was as much economic as personal, the personal debt of conjugal relations transferred its significance to the economic realm. The husband and the wife both invariably brought into the marriage some amount of property of their own. In the city, a husband would have had a recognizable profession, trade, or at least the lease of certain properties, and a wife would possess some form of dowry, and these trades and properties were meant to prosper within the family economy as the family itself prospered. Marriage was therefore closely linked to procreative ideals both in the sense of familial continuation through offspring and in the sense of mercantile concerns of property, trade, and ownership.

Practice of the equality of marital debt was far from ideal, however. St. Paul's admonition to render the marital debt served as the basis for early canon law regulations of marriage, but the inherent social discrepancies between the genders resulted in a less than perfect system, a discrepancy crucial to modern debates surrounding the debt. Gratian's canon law compilation of 1140, the Concordia Discordantium Canonum, commonly referred to as the Decretum, discussed marriage and the marriage contract at length. It was in this work the notions of mutual consent and sexual obligation became institutionalized in legal venues (Makowski Conjugal Relations). Elizabeth Makowski, in "The Conjugal Debt and Medieval Canon Law," and James Brundage, in "Sexual Equality in Medieval Canon Law," point towards the Decretum as a pivotal moment in the institutionalization of equality in the marital relationship. Medieval conjugality, for both Makowski and Brundage, was characterized by mutual obligations and was therefore a form of equality, since that debt could only be evaded through mutual consent.

This notion of conjugal debt as a form of mutual equality, however, has come under some serious scrutiny and criticism recently, especially by historians who focus on the pervasive social oppression and domination of women in the Middle Ages. Eleanor McLaughlin ("Equality of Souls, Inequality of Sexes: Women in Medieval Theology") and Dyan Elliott (Spiritual Marriage) both recognize the fact that the inequalities inherent in the gender systems of the Middle Ages meant a similar disparity in the way the marital "equality" benefited the husband and wife respectively. As Elliott states,

the rhetoric of equality that surrounds medieval and modern discussions of the debt is only convincing if all awareness of social mores and biological differences is suspended. It is impossible that the debt alone should be free from all inequalities built into the gender system. (148)

whether or not they actually worked together, family members worked in the economic interest of the family. In peasant and artisan households, and in proletarian families, the household allocated the labor of family members. In all cases, decisions were made in the interest of the group, not the individual. (21)

The documentary evidence of the urban femme sole is abundant, especially from the late fourteenth to the mid fifteenth centuries. But as early as the thirteenth century, the institutionalization of a wife's power within the mercantile realm was beginning to emerge. For example, around 1230, the charters of Salford, Stockport, and Bolton all contain stipulations as to the power a wife had to conduct familial business without her husband being present:
 

Item quilibet potest esse ad placitum pro sponsa sua et familia sua, et sponsa cujuslibet potest firmam suam reddere preposito faciente quod fieri debeat, et placitum sequi pro sponso suo si ipse forsan alibi fuerit.
Every burgess may stand in a plea for his wife and household and the wife of a burgess can pay the rent to the reeve and do all that is needful, and follow a plea for her husband if perchance he be absent.(trans. Bateson)] (Burough Customs 222-23)

In all of these English towns, a wife did not merely have the ability to represent her husband but a clear legal responsibility to do so "if perchance he be absent." But insofar as her juridical power was present, that power still remained tied to her relationship with her husband, as sponsa--an unusual legal term for a wife probably derived from the promissory aspect(spondeo) of her familial relationship, a relationship which is linked to the urban nature of that marriage in this passage. Such changes in diction, in a formulaic legal language generally quite codified and regular, mark the disruptive force of wives conducting business, either on their own or on their husband's behalf; it is a clear change in juridical language in cases where a wife needs to be differentiated from other women. Later in the passage, the husband is referred to in the usual sponsus suo of legal documentation, but his role must initially be posited not as a "potentate" of the town but rather as the mercantile lord of the household, a nomenclature which differentiates his domestic economic role from his socio-political role. This text, while never actually using such terms as femme sole--or more appropriately, given the language of the edicts, uxor or mulier--begins to articulate the legal institutionalization of women's power within both a domestic and public economy, but it does so against the overbearing force of the husband's power within both the marital and public spheres.

Whether or not a wife worked was often a good indication of the social status of a particular household economy. Women have always played a significant role in domestic economies, traditionally in agricultural economies, and the late Middle Ages was no different in its focus upon women's roles in spinning, carding, farming, raising children, brewing, etc. But the tenor of their position changed as market economies began to flourish in late medieval England. As sustenance living gave way to trade and mercantile activities, women's work also began an often slow but inexorable movement into those spheres. As the Salford custumal shows, the official recognition of this movement began with the establishment of that role vis-à-vis the marital contract. When the women tested the boundaries of such regulation, the fact that they

may have begun to assert themselves in other spheres, frightening men, other women, and perhaps even themselves portended the destruction of the traditional sex-gender system and the institutions based on it. (Howell, Women, Production, and Patriarchy 183)

By the fourteenth century, the femme sole trope began to emerge as a regular part of mercantile legal documentation in England, but generally only in those situations which dealt with wealthy or aristocratic families. As a holdover from earlier Anglo-Norman feme seule, the term had found a foothold in standard formulaic legal discourse of later law French, which had superseded the documentary privilege of Latin. The Rotuli Parliamentorum (for example), perhaps the most comprehensive set of historical legal documents available from the period, reflects the movement from Latin to law French in documentary history. While Strachey's 1767 edition of the Rotuli Parliamentorum is difficult to come by--and is a less than congenial research aid--it offers a plethora of evidence still not fully taken advantage of by modern medievalists. The documents therein reflect a specifically urban climate; nowhere else do we see reflected the entire montage of medieval English urban culture, given the makeup of early English parliamentary convenes: lords and laymen, burgesses and borough representatives, knights, priests, merchants, aldermen, and officials from around the country. The early parliamentary rolls--prior to the move of parliamentary records from the treasury to the Chancery during the early years of Edward III's reign--are unfortunately less complete than subsequent records, but from 1339 to the end of the fourteenth century there are only five years for which we have no extant rolls.⁽⁶⁾

During the reign of Edward I, the Rotuli Parliamentorum contained predominantly Latin pleas, petitions, and parliamentary proceedings. As in the preceding Salford custumal, references to marital business affairs refer to the wife as uxor or, occasionally, mulier. In these early Latin references to wives conducting business, the most common position for them to be in was under the direct governance of the husband. The Salford custumal is peculiar in its shift of the assignation of a wife's nomenclature, but it is quite ordinary in its positioning of the wife within the legal confines of the husband, reinforcing the traditional relationship delineated by the marriage debt. As a passage from the Rotuli Parliamentorum of 1291 shows, in a case where a wife does not have a clearly defined default position as her husband's ward, the court is in something of a quandary to legislate her rights:

Videtur etiam quod durum esset, & non juri consonum in casu isto, q Uxor propter delictum viri pateretur exheredationem.
[It will be seen however that the case was not an easy one, and there was no law suitable to that case, that a Wife should be disinherited on account of the disclosure of the crime of the husband . . .] (RP 19 Edw I Vol I 67b)

Clearly the crimes of the husband have a noticeable effect on the wife's position and goods. This particular case addresses the rights of a wife to keep control of what few material possessions she had in a marriage, such as her dower, when a husband has forfeited to the crown his rights to similar possessions. It is not until the late fourteenth century that parliament stipulates the disassociation of a wife from her husband's criminal activities. The wife of a felon is given legal claim to her dower and any accompanying settlement as long as she does not participate in or consent to her husband's felony. She is not, as of yet, solus, acting as if she were a single woman. Rather, her position is more closely akin to that of a widow and the subsequent control a widow would have over her dower and inheritance.

Such legal representations of women within marriages have done a grave disservice to their historical representation. Modern popular conceptions of medieval marriages, especially arranged marriages, assume that these relationships were almost exclusively business contracts for the negotiation and transference of property, often viewing the wife as part and parcel of that property. But canon law did state that the marriage should be based upon mutual consent of both parties, and those marriages not performed at the church door were supported by similar common law stipulations.⁽⁷⁾ For my purposes here, the interesting aspect of dower was the control over lands which that institution gave women despite the edicts preventing their sole ownership of such land. A wife, upon her husband's death, or in this case upon the legal removal of a felonious husband, was entitled to a third of her husband's share of property (along with her original dowry) as her dower, encumbering that land until she remarried. She was not in sole possession and control of such land, but held it until such time as she could use it as a re-investment in the marriage market. More than popular conception gives her credit for, the wife had a voice in her position in the marriage and might well participate in the marriage economy apart from the men in her life.

In approximately the same year as the Rotuli Parliamentorum passage concerning a felon's wife's dowry, the town of Ipswich was also concerned with the relationship between wife and her husband in criminal actions. In a case which foreshadows the development of legal femme sole, the Ipswich custumal disassociates the wife from her husband in matters of sole legal transgressions.

Item usé est qu femme coverte de baroun seyt justicee par les baillifes de la dyte vyle a respoundre devaunt eux en play de trespas, où peyne d'enprisonement ou de juyse peot estre agardé solom ley e usage de meyme la vyle, auxi com ele sereyt justisee si ele fust sole saunz baroun, c'est a saver de soun personel trespas, mès qe le trespas ne tuche mye fraunk tenement.

[It is custom that a woman protected by her hsuband (i.e., a wife) is brought to justice by the bailiffs of the said village in order to answer before them in a plea of trespass, where there is risk of imprisonment or punishment according to the law and custom of the same village, she may be dealt justice as if she were single without a husband, that is to say for her personal trespass, but not that trespass which touches a free tenement.(trans. Bateson)] (Borough Customs 223-24)

Again, we can see the legal representation of the wife within the document closely aligned with that of the husband. She is not yet regarded as a woman acting as if she were single, or a "woman alone." Rather, she remains a wife acting without her husband; that which defines her in this document is her position as a wife without the husband, so the husband still remains as the defining aspect of her legal representation merely through the definition of his absence. The wife's role in this document is still subject to the husband's defining characteristic as her "baroun," and although she is given a certain degree of autonomy, this is done in order to protect the husband's goods from her transgression, just as the London edict is meant to protect the wife's interests. As a document rhetorically linking one party to the other, it does not assign true autonomy to either party, in that either party must be defined by his or her relationship with the other.

What happens in the fourteenth century is a rhetorical movement in the legal documents away from this forced association of the wife with her husband. The sole in femme sole still implies a relationship with the husband, as the wife must be classified as if she were single rather than married, but more and more the documents do not include the husband as part of the wife's nomenclature. This can clearly be seen in the Rotuli Parliamentorum by 1328:
 

An're Seign~r le Roi & a son Conseil monstrent Richard, fitz Gilbert Talbot, & Elizabet sa femme, qe come ils eussent suy de faire venir devant le Consail nr~e Seigneur le Roi a son darrein Parlement a Westm', les transcritz des pietz des deus Fyns p lesqueux Fyns Hugh le Despenser, le piere, & le fitz, avoient purchacez les Manoir de Payneswik & Chastell Godrich, de la dite Elizabet, tant come ele fuit sole; Et p enprisonement, & par duresces, & p cohercions, tant come ele demurra en dure prisone a Pursrich, fuit la dite Elizabet costreint a faire le reconissances des Fyns . . .
[The Lord King and his Counsel show that Richard, son of Gilbert Talbot, and his wife Elizabeth, who having been made to come before the Counsel of our Lord King to his most recent Parliament at Westminster, the transcripts of parts of two fines for which fines Hugh the despenser, the father, and the son, acquired the Manor of Paineswich and Godrich Castle, from the said Elizabeth, as if she were single; and on account of imprisonment, duress, and coercion, during the time she dwelt in prison at Pursrich, was the said Elizabeth constrained to make recognizances of fines . . .] (RP 2 Edw. III vol II 22a-b)

Apparently, Elizabeth Talbot was forced to acknowledge an agreement over the money owed (recognizance of fines) for the transference of certain properties, and was forced to do so without her husband. The transcripts acknowledging the fines are, according to Elizabeth and her family, null and void given the fact that those transcripts were made while she was imprisoned and under duress. Elizabeth's legal position as femme sole trader is somewhat ambiguous here. She is not actually working by herself for the transference of those lands or properties, but rather she is used as if she were such a woman. This is an important distinction, for it shows how early in the femme sole tradition that positioning was both accepted and used. Elizabeth and Richard are clearly not members of the most broad class of merchant traders and craftsmen, given the fact that this case deals with the transfer of such substantial estates. Often women of the aristocracy were considered femme sole for purposes of property disbursement. As early as 1344, for example, the Queen of England was treated as a femme sole for purposes of property (Year Book 17-18 Edw. III 430). Rather than being a clear case of the femme sole, Elizabeth's incarceration and subsequent legal proceedings touch upon the English common law and canon law doctrine of unity.

Simply put, the doctrine of unity stipulated that, under the eyes of the law, a husband and wife were but one person united under the name of marriage. Within such a situation the husband, of course, retained clear superiority.⁽⁸⁾ In the Talbot case, while Elizabeth is referred to as sole, it does so only in reference to the transgression against the unity of marriage which the recognizances represent. These recognizances were acquired (avoient purchacez) from Elizabeth as if she were single (tant come ele fuit sole). She is not acting as a femme sole but is forced into a contract, which is allowed only to femme sole women. We can, in this case, see the concept of the wife acting alone emerging, but only insofar as that concept reflects strictly upon the power of the husband in the unity of the marriage. Subsequent cases will place that concept in the affirmative, proactive role of allowing for an institutionalization of power apart from--truly a sole trader--the defining role of the husband.

Subsequent legal refutations of women acting as femme sole again emerge in aristocratic arenas before becoming more common among merchants themselves. One of the most famous of such cases is the series of errors assigned to judgments against Alice Perrers in 1378. Perrers had been, since the early 1360s, the mistress of Edward III. After Queen Philippa's death in 1369, Perrers exerted increasing control over both the king and the court, even securing from Edward an estate at Wendover, near the estates of John of Gaunt (with whom she also was rumored to have had "relations") and the Black Prince.⁽⁹⁾ After Edward's death in 1377, Perrers fled the country, realizing the animosity she had incurred from the commons.⁽¹⁰⁾ The Rotuli Parliamentorum account of the legal retribution against her includes a series of "Errors dans le jugement d'Alice Perrers:"

It'm, entant q~ la dc~e Alice fuist mis' de respondre come femme sole, la ou a cele temps, & long temps devant, ele fuist la femme William de Windesore & covert de lui . . .
[Item, it is the case that Alice made her response as a single woman, where at that time and for a long time before that she was the wife of William of Windsor and "covered" by him . . .] (RP 2 Ric. II Vol. III. 41b-42a)

By the turn of the century, femme sole wives had become almost commonplace; the textual environment delineating their position had become much more comfortable with the terms and diction necessary to differentiate their role both legally and in the burgeoning mercantile environs. One of the clearest examples of the facility which developed regarding femme sole adjudication is the wonderful Liber Albus of London. The Liber Albus represents one of the most comprehensive collections of social and legal documents and archival material from the period. It was compiled in 1419 from a number of documents--most notably the Proemium--by John Carpenter, Town Clerk. In it can be seen both a history of how civic and governmental cases were handled throughout the fourteenth century and the dexterity with which compilers wrote about such developing issues as the femme sole.

The Liber Albus is meticulous in its efforts to differentiate between types of women in medieval law and society. While it is a hodgepodge of law French, Latin, and Middle English, it negotiates among terms as fluidly as among languages. The following Latin regulation, dealing with the number of essoiners⁽¹¹⁾ required for a defendant, exemplifies the way in which terms were not haphazardly assigned to women, but followed rather strict guidelines with respect to their marital status and their position vis-à-vis mercantile concerns:
 

Quaestio XI. Si vir et uxor petunt versus aliquem, qualiter ipse tenens debeat se essoniare versus eos, vel per unum essoniatorem vel per duos?
Responsio. Responsum est quod per unum tantum.
[Question XI. If a man and wife bring suit against someone, just as when in the same way essoin is held against them, should there be one essoiner or two.
Response. The answer is that there ought only to be only one.] (Liber Albus 68; emphasis added)

Quaestio XII Si mulier habens francum bancum suum, et aedificia corruant, quis ea debeat reparare vel sustentare, haeres vel mulier?
Responsio. Responsum est, quod quae habet francum bancum suum et aedificium receperit in bono statu, in eodem statu illud sustinebit, ita quod pro defectu mulieris non decidat. Sed si aedificium vetus sit in morte viri sui paratum decidere, oportet quod in tali casu haeres, si habeat unde illud reparare faciat, et postea domina, illud sustinebit. Et si post mortem viri multa sint ibi aedificia in franco banco, et uxor defuncti omnia non possit vel noluerit sustinere, ea quae voluerit sustinere retineat et sustineat.
[Question XII. If a woman holds her free bench, and buildings are in disrepair, who is it that ought to repair or maintain it, the owner or the woman?
Response. The answer is, that whosoever is in possession of her free bench and the building is responsible to keep it in good repair, to maintain it in the same state, so that it not fall down because of the woman's dereliction. But if, at the time of the death of the husband himself, the building is very old and about ready to fall, it is proper that in such a case the owner (or heir) should maintain it, if he makes as if to repair it, and afterwards the Lady of the household. And if after the death of the husband there be many buildings in free bench, and the wife is not able or is unwilling to maintain all of them, she who wishes to sustain them may own and repair them.] (Liber Albus 68; emphasis added)

While female ownership of property was denied, giving rise to such convoluted dowry situations as the free bench issue, women operating businesses on their own and wholly separate from their husbands were not only allowed but expected in certain mercantile families. Women most vigorously participated in such situations, giving rise to the clear delineation of those roles in Liber Albus common law representations:
 

Uxor Quae Sola Mercandizat. Et lou feme coverte de baroun usee ascun craft deinz la dite citee apar luy soule, dount le baroun se melle rienz, tiele femme serra chargee come femme soule de tout ceo qe touche soun dit craft. Et si le baroun et la femme soient empledez, en tiel cas la femme pledera come femme soule en courte de recorde, et avera sa ley et autres avaunteges par voy du pley come femme soule. Et si elle soit condempnee, elle serra commys a la prisoune tancqes elle eit fait gree; et le baroun ne ses biens ne serrount my en tiel cas chargez nenpeschez.
[And where a wife (woman under the protection of a husband) follows any craft within the said city by herself alone, with which the husband does not interfere, such a woman shall be charged as a single woman concerning everything which touches her said craft. And if the husband and the wife are impleaded, in such a case the wife shall plead as a single woman in a court of record, and she shall have her law and other advantages by way of plea like a single woman. And if she is condemned, she shall be committed to prison until she makes appeasement; and neither the husband nor his goods shall be in such a case charged or impleaded.] (Liber Albus 204-5)

By the time of the production of the Liber Albus, women's mercantile activity was sufficiently pronounced to have institutionalized their position in those documents. This trend of female mercantile activity was motivated by both the changing demands placed upon the workforce, depleted by such events as war and plague, and also by the restructuring of the relationship between merchant and state reflected in such events as the Peasants' revolt and the Good Parliament. Such an institutionalization moved the power of the woman beyond the domestic into the public spheres, if such terms can be used of a period in which domestic and public production seemed to go hand in hand, and in which the patriarchal structure defining the home economy certainly was affected by both women's entry into the workforce as individuals (sole) and subsequent legal moves to protect husbands in such a relationship. As a form of defense, femme sole status protected the husband from economic and legal repercussions of his wife's activities, but it also institutionalized her power outside the boundaries of patriarchal familial control, or perhaps, more appropriately, moved such control from the dominance of the domestic patriarchy to that of the public patriarchy, the state.

This protection was not, by this time, specific to mercantile activities. Femme sole status, often considered a specifically mercantile construct which must be registered for by the woman, had exceeded that definition and was being used in other not so specifically mercantile instances. In a suit of trespass, for example, the wife had recourse to sue as femme sole in the absence of her husband, even though she might not be officially a femme sole trader:

Item, si pleinte de trespas soit fait devers un homme et sa femme de trespas fait par la femme soulement, adouncqes la femme respoundera soule sanz soun baroun, si le baroun ne viegne mye, et avera pley come femme soule.
[Item, if a complaint of trespass is made against a man and his wife for a trespass made by only the wife, then the woman shall respond alone without the husband, if the husband does not appear, and she shall plea as a single woman. ] (Liber Albus 205)

Item, si pleinte de trespas soit faite par le baroun et sa femme de baterie faite a la femme, en tiel cas la femme serra resceu pur luy, et pur soun baroun de pursuir et recoverir ses damages devers le defendant, coment qe le baroun ne soit my present.
[Item, if a plaint of trespass is made by a husband and his wife concerning battery made upon the wife, in such a case the wife shall come for herself, and for her husband in order to sue and recover such damages against the defendant, even when the husband is not present.] (Liber Albus 205)

Such autonomy blurs the boundaries between single (sole) women and married women with respect to specifically mercantile issues. In other types of cases, where economic issues are not at stake, the husband regularly retains control, such as in suits against a battery which causes an abortion.⁽¹²⁾ Regularly, women held the same legal position as minors, and were treated legally as such, except in cases clearly mercantile in nature:

Item accioun d'accompt est mayntenable par usages devers une femme sole et devers enfauntz dedinez age, s'ils soient marchauntz ou s'ils teignent comunes shopes de mestier et des merchaundises; et acciouns de dette en mesme le manere, de ceo qe touche lour mestier ou lour marchaundises.
[An action of account is maintainable through custom against a single woman and against under-age children, if they are merchants or they hold common craft or trade shops; and actions of debt in the same manner, for everything that touches their craft or trade.] (Liber Albus 219)

In 1464 the Rotuli parliamentorum records an act allowing Ann, Duchess of Exeter, to act as a femme sole trader with respect to those gifts of the crown she received before, during, and after her marriage. Notice the force which the crown places upon the autonomy of femme sole status:

42. The Kyng, our Soverayne Lord, of grete zele and tendre affection which he hath unto his entierly welbiloved suster Anne, wyf to Henry late Duke of Excestre, graunteth of his grace especiall . . . that all his Letters Patentes, and all other Grauntes, Yeftes and Feoffementes, made to hir afore this tyme, or hereafter to be made to hir, duryng the life of hir seid Husbond, of eny Lordships, Maners, Londes, Tenementes, Possessions, Enheritamentz, Goodes or Catelles, be to hir self oonly available, good and effectuell, as if she had be or were woman soule, tymes of the makyng of the seid Letters Patentes Grauntes, Yeftes and Feoffementes, she to have and to hold theym as woman soule, oonly to hir owne use, withoute lette empechement or clayme of the Kyng or his heires, Shirrefs, Eschetours, or eny other the Kynges Officers or Mynistres . . . And also to be able by the seid auctorite, to sue in hir name soule, by Writtes, Billes or Playntes, for almaner Fermes, Rentes, Goodes, Catelles and Dettes . . . to have as a woman soule, she to have theym soule to hir owne use. And also to be able by the seid auctorite, to sue in her owne name soule, almaner of actions as the case shall require, for all thinges that to hir his hereaftyer shal be nedefull to sue ayenst eny persone, for or by reason of eny of the premisses or otherwise . . . And that all Releases, Feoffementes, Yiftes, Grauntes, Obligations, Acquittauncez, Leases, and all other thinges to be made hereafter by or to the seid Anne, duryng the life of her seid husbond, be of the same force and effect, as they shuld be if she were or had been soule woman at the tyme of the makyng of theym . . . (RP 4 Edw. IV Vol. V 548-49)

The late medieval English femme sole operates, therefore, in several tangential spheres. As a legal category, it applies to both married women and single women. It can attest to both the power of the husband and the autonomy of the wife. It can even serve as an example of the way that autonomy mediates the concerns of the merchant classes as a whole. The juridical subject is constrained in many ways by their texts. That does not mean, however, that the legal representation of women's power is not a concern of a variety of texts. Whereas the idea of the femme sole manifests itself explicitly only in narrowly defined legal texts, we can see that term exhibited much more fully, although not as explicitly, in contemporary family narratives. The forces that intersect to characterize a woman as femme sole during the late fourteenth and early fifteenth centuries emerge in a rich and varied textual environment. Documentary evidence proves an attention to rhetorical and stylistic specificity which is mirrored in the subsequent literary documents. Texts such as the Rotuli Parliamentorum and the Liber Albus are constrained in many ways by their genre, as are more traditionally literary texts such as the Canterbury Tales and the Book of Margery Kempe; both genres offer us glimpses into the problems and opportunities manifest in literary and historical figures of merchants and merchant marriages. Once gender is introduced into the mercantile marriage equations of power, dominance, submission, autonomy, equity, value, and debt, it becomes increasingly more difficult to balance the familial books.

Baker, J. H. An Introduction to English Legal History. Toronto: Butterworth, 1990.

---. Manual of Law French. 2^nd ed. Brookfield, VT: Scolar P, 1990.

Borough Customs. Ed. Mary Bateson. Selden Society. London: B. Quaritch, 1904-06.

Brown, A. L. The Governance of Late Medieval England 1272-1461. London: Edward Arnold, 1989.

Brundage, James A. "Sexual Equality in Medieval Canon Law." Medieval Women and the Sources of Medieval History. Ed. Joel T. Rosenthal. Athens, GA: U Georgia P, 1990. 66-79.

Chaucer, Geoffrey. The Riverside Chaucer. Ed. Larry D. Benson. 3rd ed. Boston: Houghton, 1987.

Donahue, Charles, Jr. "The Canon Law on the Formation of Marriage and Social Practice in the Later Middle Ages." Journal of Family History 8.2 (1983): 144-158.

Elliott, Dyan. Spiritual Marriage: Sexual Abstinence in Medieval Wedlock. Princeton: Princeton UP, 1993.

Howell, Martha. Women, Product, and Patriarchy in Late Medieval Cities. Chicago: U Chicago P, 1986.

Hutton, Diane. "Women in Fourteenth Century Shrewsbury." Women and Work in Pre-Industrial England. Eds. Lindsey Charles and Lorna Duffin. Dover, NH: Croom Helm, 1985. 83-99.

Kay, George F. Lady of the Sun: The Life and Times of Alice Perrers. London: 1966.

Lacey, Kay E. "Women and Work in Fourteenth and Fifteenth Century London." Women and Work in Pre-Industrial England. Eds. Lindsey Charles and Lorna Duffin. Dover, NH: Croom Helm, 1985. 24-82.

McKisack, May. The Fourteenth Century, 1307-1399. Oxford: Clarendon Press, 1959.

McLaughlin, Eleanor. "Equality of Souls, Inequality of Sexes: Woman in Medieval Theology." Religion and Sexism. Ed. Rosemary Reuther. New York: Simon and Schuster, 1974.

Liber Albus. Ed. Riley, Henry Thomas. 2 vols. London: Longman, 1859.

Makowski, Elizabeth M. "The Conjugal Debt and Medieval Canon Law." Journal of Medieval History 3 (1977): 99-114.

---. Conjugal Relations and Medieval Canon Law: Development of the Concept of Conjugal Debt. Thesis. U Wisconsin-Milwaukee, 1976.

Middle English Dictionary. Gen. Ed. Hans Kurath. Ann Arbor: U Michigan P, 1952-1998.

Missouri. Revised Statutes. Marriage, Marriage Contracts, and Rights of Married Women Section 451.290. August 28, 1997. Accessed June 20, 1998 <http://www.moga.state.mo.us/STATUTES/C451.HTM>

Pinchbeck, Ivy. Women Workers and the Industrial Revolution, 1750-1850. New York: Crofts, 1930.

Power, Eileen. Medieval Women. New York: Cambridge UP, 1975.

Richardson, H. G., and G. O. Sayles, introduction. Rotuli Parliamentorum Hactenus Inediti, 1270-1373. Camden Third Series, 51. London: Camden Society, 1935.

Rotuli Parliamentorum [Rolls of Parliament]. Vol. 2 (1326-77), vol 3 (1377-1411). London, 1783. [RP]

Rowbatham, S. Hidden From History: 300 Years of Women's Oppression and the Fight Against It. London: Pluto P, 1973.

Tilly, Louise, and Joan W. Scott. Women, Work, and Family. NY: Holt, Rinehart and Winston, 1978.

Vanne, R.T. "Women in Pre-Industrial Capitalism." Becoming Visible:Women in European History. Eds. R. Bridenthal and C. Koonz. Boston: Houghton, 1979.
 
 

This appendix includes the full texts of all cases referred to in the previous essay as well as a few additional cases pertaining to the development of the legal terms femme sole and femme covert. I have organized all passages chronologically, in order to better show the changes that the femme sole undergoes throughout English legal history in the thirteenth through fifteenth centuries. All dating derives from the editions from which the passages are taken, and a complete description of contents may be found in the introductions to those editions for all but the Rotuli Parliamentorum. Introductory passages in quotation marks are from their respective editions. Translations, unless otherwise noted in parentheses, are mine.

The Rotuli Parliamentorum presents some special typographic concerns, most notably the use of a tilde -- ~ -- for abbreviations. In such cases, the tilde appears in these transcriptions after the letter above which it appears in the Rotuli Parliameneorum. Introductory notes of summation in are taken from the texts as they appear in their respective editions, either as introductory notes or in marginalia.
 

1230 (about)

The Charter of Randle de Blundeville

On the power of the husband to stand plea for his wife annd her ability to do the same if he be absent. This clause may also be found in the charters of Stockport and Bolton.

Item quilibet potest esse ad placitum pro sponsa sua et familia sua, et sponsa cujuslibet potest firmam suam reddere preposito faciente quod fieri debeat, et placitum sequi pro sponso suo si ipse forsan alibi fuerit.
 

[Every burgess (anyone of the aforementioned) may stand in a plea for his wife and household and the wife of a burgess can pay the rent to the reeve and do all that is needful, and follow a plea for her husband if perchance he be absent.(trans. Bateson)](Burough Customs Salford, cap. 19. 222-23)
 

1291

The wife of a man who has committed a felony may retain posession of her dower unless she participated in or consented to his felony

No. 2 Robertus Cissor, de Migeham, occidit Thomam Asculph, et Robertus fugit, & malecreditur, Ideo exig' & utlag' Catalla ejus &c. Idem habuit terram unde annus & vast' Domini Reg' x s~. unde Vicecom' respon'.

Postea testatum est quod predicta terra fuit Maritagium Matild' Ux' predicti Roberti, que venit & finem fecit pro habenda predicta terra in pace, pro x s~. per p Johannis de Euerinton.

Et quia, licet prius non videbatur aliquibus juri consonum fuisse q Ux' Felonis in vita viri sui, secundum sanctam Ecclesiam, qualitercunque deliquissetquoad forum regium, non posset nec deberet a viro suo separari, et sic quicquid foret in possessione Ux' converteretur in potestatem viri, et hoc manifeste imineret contra consuetudinem regni; Et etiam, quia quidem dubitabant q de Possessionibus & Bonis Ux' vir posset aliqualiter sustentari, Tamen coram Consilio Domini Regis, apud Westm' in predicta quindena, vocatis Thes' & Baron' & Justic' de utroque Banco, concordatum est quod predicta Margeria rehabeat talem seisinam qualem prius habuit de predicto Manerio, fecundum proportum predicti Finis, salvo jure cujusque: l'atet e~m per predictum exemplum inventum de tempore Domini Henrici Regis, q ux' in vita viri sui, rectati de homicidio & fugitivi, rehabuit seisinam terre sue, dubitatione aliqua premissorum non obstante.

Videtur etiam quod durum esset, & non juri consonum in casu isto, q Uxor propter delictum viri pateretur exheredationem, per quod liberum tenementum in manu Ux' adnullatum fuisset vel extinctum; maxime,cum delictum illud sit personale, nec debet in personam alterius transferri quam Delinquentis, nisi tamen a casu uxori posset obici q consentiens vel alio modo inde culpabil' esset, et super hoc rationabiliter in Cur' Domini Regis convinci. Inhibend' est etiam prefate Margerie, sub pena qua decet, q non exhibeat alimentum vel sustentationem clam' vel palam viro &c.

Et sciend' est quod negotium istud ostendend' est primo Domino Regi, et postea precipiat fieri q sibi placuerit in hac parte. Quia inconsulto Domino Rege non vult Consilium ulterius procedere &c. (RP 19 Edw. I. vol 1. 67b)
 

"Black Book of the Admiralty" printed by Sir Travers Twiss. A husband is not liable for a wife's trespass. This custumnal was issued by officers and commonality to replace a stolen Domesday Book.

Item usé est qu femme coverte de baroun seyt justicee par les baillifes de la dyte vyle a respoundre devaunt eux en play de trespas, où peyne d'enprisonement ou de juyse peot estre agardé solom ley e usage de meyme la vyle, auxi com ele sereyt justisee si ele fust sole saunz baroun, c'est a saver de soun personel trespas, mès qe le trespas ne tuche mye fraunk tenement.
 

[It is custom that if a wife is brought to justice by the bailiffs of the said village in order to answer before them in a plea of trespass, where there is risk of imprisonment or punishment according to the law and custom of the same village, she may be dealt justice as if she were single without a husband, that is to say for her personal trespass, but not that trespass which touches a free tenement.](Borough Customs Ipswich, cap. 55, 223-24)
 

1316

"Petition that a Woman, notwithstanding her husband may be attained of Felony, may be endowed, rejected."

13. Item, La Comune prie, q~ Femmes par my la Terre foient dowez Tenementz q~ furunt a lour Barouns, tut foient lour Barouns teintz de Felonie, et portent jugement, desicome eles sunt mariez, a grant custages de lour amys, et dreit de 'Dowere lour acrest par my les Espousailles.

Response

13. Quant al point tochant Dower des Fem~es qi Barons sont Felons; por ce qe la Demande est contre la Lei, rien soit fait.(RP 2 Edw. III vol II. 8b, 11b)
 

1328

Recognizance of fines accrued by a wife before her marriage prayed to be cancelled because participation was made under duress of the wife.

No 27. Richard and Elizabeth Talbot.

An're Seign~r le Roi & a son Conseil monstrent Richard, fitz Gilbert Talbot, & Elizabet sa femme, qe come ils eussent suy de faire venir devant le Consail nr~e Seigneur le Roi a son darrein Parlement a Westm', les transcritz des pietz des deus Fyns p lesqueux Fyns Hugh le Despenser, le piere, & le fitz, avoient purchacez les Manoir de Payneswik & Chastell Godrich, de la dite Elizabet, tant come ele fuit sole; Et p enprisonement, & par duresces, & p cohercions, tant come ele demurra en dure prisone a Pursrich, fuit la dite Elizabet costreint a faire le reconissances des Fyns avant nomeez, devant Monsire Johan de Bousser, Justice du Bank, q~ fust illek mande pur cele reconissance resceure, auxi come plus pleynement est trove par une solempne enqueste prise devant Monsire Johan de Stonore, & autres Justices, solom la forme d'une Comission de ceo fait, quele Comission, ensemblement ove l'enqueste, est returne en la Chauncellerie nr~e Seign~r le Roi. Par quoi les avantditz Richard & Elizabet prient, q~ la dite enqueste soit vewe, & q~ les Fyns avantditz soient anientitz, issint q~ les ditz Rich' & Eliz' aient droit & remedie, folone la forme de la dite Ordenance de ceo fait.

Acorde est en le gen~al respouns, q~ le Roi face nom' & assign' Evesqes, Contes, & Barons, de fair execucion de l'Estatut, & pur ceo suier.
 

[The Lord King and his Counsel show that Richard, son of Gilbert Talbot, and his wife Elizabeth, who having been made to come before the Counsel of our Lord King to his most recent Parliament at Westminster, the transcripts of parts of two fines for which fines Hugh the despenser, the father, and the son, acquired the Manor of Paineswich and Godrich Castle, from the said Elizabeth, as if she were single; and on account of imprisonment, duress, and coersion, during the time she dwelt in prison at Pursrich, was the said Elizabeth constrained to make recognizances of fines before those named, in the presence of M. John of Bousser, Justice of the Bank, that it was commanded in order to conceal the recovery of the recognizance, also as was most plainly found by a solemn inquest before M. Johan de Stonore, and other justices, according to the form of the commission in which it was made, that Commission, together with the inquest, is returned in the Chancellory of our Lord the King. Because the aforesaid Richard and Elizabeth asked prayed that the said inquest should be witnessed, and that the fines aforementioned should be waived, because the said Richard and Elizabeth had the right and the remedy, according to the form in which the said Ordenance was made.

According to the general response, which was made in the King's name and was witnessed by the Bishops, Counts and Barons, was executed by the statute, and so it was done.](RP 2 Edw.III vol II. 22a-b)
 

1334

Case of a writ not maintainable against a married woman unless it contains the name of her husband.

An're Seign~r le Roi prie Thomas de Nerford, qe cometrove fust par enquesteretourne en Chauncellerie, qe Johan de Nerford, qi heir il est, morust seysi de e~teines terres & tenementz en Schotesham, Wottone, Crouchestoke, Thereston Longestratton, Welhom, & Harpeton, qe sount le droit & l'eritage le dit Thomas. Desqueux tenementz Johan Mautravers, & Anneyse sa femme, disseiserent le dit Thomas; si qe le dit Thomas par agarde de Court porta une Assize dev~s les ditz Johan & Anneyse, pendant quele Assise le dit Johan fuit forjugge en Parlement, & issi l'Assise delaye. Si qe le dit Thomas p agarde de Court porta une autre Assise dev~s le dit Anneyse; q~ ad respondu come tenaunte, & dit, q'ele tient les tenementz mys en veue & pleinte de Passignement nr~e Seign~r le Roy, saunz qi ele ne poet respoundr'; p quoi les Justices ne voelont aler avaunt. Plese a nr~e Seign~r le Roi, de com~aunder Bref as Justices q'ils alent avaunt en l'assise, nientcontreesteant cele allegacion, si qe le dit Thomas ne soit desheritez.

Responsio. Il semble au Conseil q~ le Brief originall n'est my meintenable p Ley saunz nomer son Baron, par qoi rien ne poet estre fait.(RP 3 Edw. III vol. II 82a)
 

1340

A husband is responsible for his wife's debt as long as the husband and wife are on "good terms" one with the other.

De placito debiti recuperandi a viro quod uxor sua capit a pari ville. Item in casu alicujus ceperit exaccomodata (sic) bona vicini sui concivis illius civitatis sine vadio vel cum vadio preter scienciam viri sui, respondeat idem vir de bonis accomodatis uxori sue in ejus absencia, dum tamen idem vir etuxor sua ben se habeant ad invicem, videlicet quod hujusmodi viri uxor, tempore quo dicta bona receperit, cohabitet cum marito vel seorsum de ipsius assensu et voluntate, et quod publicum sit et manifestum de honesto gestu uxoris predicte, et quod fraudulenter nec malo modo se divertat a marito suo propria temeritate, sine sinistra [vel] austera fugacione mariti sui per maliciam ipsius viri et non per demerita inhonesta illius uxoris, nec quod ipsa se diverterit causa malignandi; in quo casu, si hec potuerunt verificari, non teneatur maritus compelli (sic) talia bona sic capta reddere. Et caveant sibi hujusmodi creditores quod sine consensu mariti hujusmodi mulieres, sic malo modo se divertentes, quicquam accomodant nisi tantummodo eorum periculo.
 

[In the case where the wife of any one without her husband's knowledge has accepted a loan from her neighbor, a citizen of this city, with or without gage, the husband must answer for the loan made to his wife in his absence, so long as the man and wife are on good terms, to wit so long as the wife of the said man is cohabiting with her husband at the time when the debt was made, or living separate by his assent and goodwill, so long as there is common knowledge of the said wife's good conduct, and that she does not (without being harshly and cruelly expelled by her husband's malice for no fault or demerit of hers) deceitfully or wrongfully separate herself from her husband by her own wilfulness, and that she does not separate herself to make mischief; for in such case if any of these things can be proved, the husband is not bound to restore the loans thus taken. And creditors should be warned that without the husband's consent they lend to a wife, separating herself thus wrongfully from her husband, only at their own risk.(trans. Bateson)](Borough Customs Norwich, cap. 29. 224-25)
 

1378

One of the most famous of the RP cases, this case represents an error assigned in the judgement against Alice Perrers, based on the fact that the judgement was made against her as a single woman, though at the time she was married. This is one item in a series of items "Errors dans le jugement d'Alice Perrers."

It'm, entant q~ la dc~e Alice fuist mis' de respondre come femme sole, la ou a cele temps, & long temps devant, ele fuist la femme William de Windesore & covert de lui, lequele William ne fuist pas ptie ne appelle a responce, & nulle, pcesse dev~s lui faite, ils errerent.
 

[Item, it is the case that Alice made her response as a single woman, where at that time and for a long time before that she was the wife of William of Windsor and "covered" by him . . .] (RP 2 Ric. II vol. III. 41b-42a)
 

1419

The number of essoiners required for a defendant when a man and wife bring suit.

Quaestio XI. Si vir et uxor petunt versus aliquem, qualiter ipse tenens debeat se essoniare versus eos, vel per unum essoniatorem vel per duos?

Responsio. Responsum est quod per unum tantum.
 

[Question XI. If a man and wife bring suit against someone, just as when in the same way essoin is held against them, should there be one essoiner or two.

Response. The answer is that there ought only to be one.] (Liber Albus 68)
 

The obligation to repair buildings on property held by a woman in free bench.

Quaestio XII Si mulier habens francum bancum suum, et aedificia corruant, quis ea debeat reparare vel sustentare, haeres vel mulier?
 

[If a woman holds her free bench,⁽¹³⁾ and buildings are in disrepair, who is it that ought to repare or maintain it, the owner or the woman.]
 

Responsio. Responsum est, quod quae habet francum bancum suum et aedificium receperit in bono statu, in eodem statu illud sustinebit, ita quod pro defectu mulieris non decidat. Sed si aedificium vetus sit in morte viri sui paratum decidere, oportet quod in tali casu haeres, si habeat unde illud reparare faciat, et postea domina, illud sustinebit. Et si post mortem viri multa sint ibi aedificia in franco banco, et uxor defuncti omnia non possit vel noluerit sustinere, ea quae voluerit sustinere retineat et sustineat. Et quae noluerit, reddat haeredi, salvo illi mulieri libero ingressu et egressu; et eodem modo haeredi ad illa aedificia quae retinuerit. Ita tamen, quod si haeredes malitiose conquerantur de decisione aedificiorum, in pleno Hustengo faciat querimoniam suam, et per Majorem et Vicecomites mittantur ad aedificia illa legales homines, vicini et alii, qui videant deteriationem domorum; et si videant quod haeredes per eorundem visum juste conquerantur, tunc detur rationabilis dies mulieri ad emendandum quod dignum fuerit emendatione. Si autem infra diem illum non fecerit, fiat inde justitia.

Si autem recognitum fuerit per praedictos legales homines quod haeredes injuste conquesti fuerint, Vicecomites inde justitiam faciant.
 

[The response is, that whosoever is in possession of her free bench and the building is responsible to keep it in good repair, to maintain it in the same state, so that it not fall down because of the woman's dereliction. But if, at the time of the death of the husband himself, the building is very old and about ready to fall, it is proper that in such a case the owner (or heir) should maintain it, if he makes as if to repair it, and afterwards the Lady of the household.

And if after the death of the husband there be many buildings in free bench, and the wife is not able or is unwilling to maintain all of them, she who wishes to sustain them may own and repair them. And whosoever does not wish, restores to the owner, without harm to that woman free ingress and egress; and in the same way to the owner who maintains those buildings.] (Liber Albus 68-69)
 

Wager of Law by freemen, strangers, and women.

De Lege Facienda. Et apres ceo qe parties soient a issue denquest, mesmes les parties ne sount pas demaundables sinoun qe lenquest soit somouns. Mais lenquest purra estre somouns, sibien al suyte le defendaunt come al suyte le pleintif. Et en pley de dette, le defendaunt poet gager sa ley par usage de la citee qil doit riens a pleintif; cestassavoir, sil soit homme enfraunchise deinz la citee on receaunt deinz mesme la citee, ovesqes la septisme mayn luymesmes nomez pur une. Et purrount tielx defendauntz faire loure leys meyntenaunt en court sur la ley gage, sils eient gentz prestes; ou autrement averont jour de faire la ley al proscheine court sewaunt.

Et si le defendaunt soit forein, estraunge, et nient resident en la citee, il purra gager et faire sa ley meyntenaunt ove la tierce mayne, luy mesmes nomez pur un, qil doit riens au pleintif, et issint estre quitez. Et sil neit deux hommes prestez affaire le serement ovesqes luy, adouncqes le defendant, al request du pleintif, deit aler en garde dun serjaunt de la court as vi esglises pluis proscheins a la Guyhalle, et deinz mesmes les esglises jurra que le serement qil fist en la Guyhalle fuist boun. Et adouncqesserra le defendant remesne a la Guyhalle, et avera soun jugement destre quitez, et le pleintif serra asmercie. Et en mesme le manere serra fait en autre accouns sonelles lou la ley est acceptable. Et lou femmes en tieux cases sount empledez et gagent lour ley, elles purront faire lour ley ovesqes hommes ou femmes a loure voluntee.
 

[And after such parties are at issue in an inquest, the same parties are not demandable except where the inquest is summoned. But the inquest may be summoned, at the suit of the defendant as well as the suit of the plaintiff. And in a plea of debt, the defendant may wage his law according to the usage of the city that he owes nothing to the plaintiff; that is to say, if he is a man enfranchised in the city or living in the same city, doing so with the seventh hand himself named as one.⁽¹⁴⁾ And producing them the defendants may make their law immediately in the court on the wager of the law, if they have such persons available; or otherwise they will have a day for making their law at tthe next available court.

And if the defendant is a foreigner, a stranger, and does not reside in the city, he may wage and make his law immediately with the third hand, himself named as one, such that he owes nothing to the plaintiff, and he will be acquitted. And if he does not have two men available to make the oath with him, then the defendant, at the request of the plaintiff, must go under th guard of a serjeant of the court to the six churches closest to the guildhall, and in these same churches swear that the oath which he made in the guildhall was good. And afterwards the defendant shall return to the guildhall, and shall have his judgment acquitting him, and the plaintiff shall be at his mercy. And in the same manner shall it be done in other personal actions of the law. And when women in such cases are empleaded and engage thier law, they can make their law either with men or women at their volition.] (Liber Albus 203-04)
 

On a wife who trades or follows a craft alone, separate from her husband.

Uxor Quae Sola Mercandizat. Et lou feme coverte de baroun usee ascun craft deinz la dite citee apar luy soule, dount le baroun se melle rienz, tiele femme serra chargee come femme soule de tout ceo qe touche soun dit craft. Et si le baroun et la femme soient empledez, en tiel cas la femme pledera come femme soule en courte de recorde, et avera sa ley et autres avaunteges par voy du pley come femme soule. Et si elle soit condempnee, elle serra commys a la prisoune tancqes elle eit fait gree; et le baroun ne ses biens ne serrount my en tiel cas chargez nenpeschez.
 

[And where a woman under the protection of a husband (coverte de baroun) follows any craft within the said city by herself alone, with which the husband does not interfere, such a woman shall be charged as a single woman concerning everything which touches her said craft. And if the husband and the wife are impleaded, in such a case the wife shall plead as a single woman in a court of record, and she shall have her law and other advantages by way of plea like a single woman. And if she is condemned, she shall be committed to prison until she makes appeasement; and neither the husband nor his goods shal be in such a case charged or impleaded.] (Liber Albus 204-05)
 

"Married Woman renting shops or houses."

De Domibus Allocatis. Item si une femme, come femme soule, allowe ascune measoun ou shope dedeinz, la dite citee, elle serra charge de paier la ferme de dite measoun ou shope, et serra enpledee et pursuy come femme soule, par voye de dette si mestier soit, nient countreesteaunt qelle fuist covertee de barounn a temps del lesse, nient sachant de lessour.
 

[Item, if a woman, like a single woman, rents any house or shop residing within the said city, she shall be charged to pay the rent of the said house or shop, and shall be impleaded and sued as a single woman, by way of debt if it is necessary, regardless of the fact that she was a married woman (coverte de baroun) at the time of the lease, the lessor not knowing.](Liber Albus 205)
 

"Concerning a plaint of trespass."

Item, si pleinte de trespas soit fait devers un homme et sa femme de trespas fait par la femme soulement, adouncqes la femme respoundera soule sanz soun baroun, si le baroun ne viegne mye, et avera pley come femme soule. Et si elle soit attient de trespas, elle serra condempne et commys a prysoun tauncqes eyt fait gree.
 

[Item, if a plaint of trespass is made against a man and his wife for a trespass made by only the wife, then the woman shall respond alone without the husband, if the husband does not appear, and she shall plea as a single woman. And if she is attained for trespass, she shall be condemned and committed to prison until she makes appeasement.](Liber Albus 205)
 

"Concerning the same thing."

Item, si leinte de trespas soit faite par le baroun et sa femme de baterie faite a la femme, en tiel cas la femme serra resceu pur luy, et pur soun baroun de pursuir et recoverir ses damages devers le defendant, coment qe le baroun ne soit my present.
 

[Item, if a plaint of trespass is made by a husband and his wife concerning battery made upon the wife, in such a case the wife shall come for herself, and for her husband in order to sue and recover such damages against the defendant, even when the husband is not present.] (Liber Albus 205)
 

"Concerning Debt"

Item, lou pleinte de dette est faite devers le baroun, et le pleintif counte qe le baroun fist le contract ovesqes le pleintif parmy la meyn la femme le defendaunt, adonqes mesme le defendant avera eyde de sa femme, et avera jour tauncqes al proschein courte de conseiller ovesqes sa femme, et 'Idem dies' serra done au pleintif.

[Item, where a plaint of debt is made against a husband and the plaintiff testifies that the husband made the contract with the plaintiff by the hand of the wife of the defendant, in such a case the defendant shall have the aid of his wife, and shall have one day until the next court for counsel with his wife, and 'Idem dies'⁽¹⁵⁾ shall be given to the plaintiff.](Liber Albus 206)
 

"Actions of accounts maintainable against femmes soles and children."

Item accioun d'accompt est mayntenable par usages devers une femme sole et devers enfauntz dedinez age, s'ils soient marchauntz ou s'ils teignent comunes shopes de mestier et des merchaundises; et acciouns de dette en mesme le manere, de ceo qe touche lour mestier ou lour marchaundises.
 

[An action of account is maintainable through custom against a single woman and against under-age children, if they are merchants or they hold common craft or trade shops; and actions of debt in the same manner, for everything that touches their craft or trade.](Liber Albus 219)
 

"A married woman estopped by her recognizance enrolled in the Court of Hustings."

Rogerus de Eure venit coram Majore et Aldermannis, ac Camerario Londoniarum, die etc., et questus fuit quod cum quidam Rogerus Sayer et Agnes uxor ejus, coram Camerario Gyhaldae Londoniarum, concessissent, tradidissent, et ad firmam dimisissent praedicto Rogero quatuor capitales domos, cum pertinentiis, quas habuerunt ex dimissione Abbatis et Conventus de Wardone, in parochia Sancti Johannis Zakeriae, Londoniis, habendum et tenendum praefato Rogero de Eure et assignatis suis a Festo Paschae anno xxxiiii^to usque ad finem dedem annorum proxime sequentium, pro quadam pecuniae summa, quam praedictus Rogerus de Eure praefato Rogero Sayer et Agneti solvit, pro manibus etc.; et unde praedicti Rogerus et Agnes obligarunt se, haeredes et assignatos suos, ad warantizandum praedicto Rogero de Eure, haeredibus et assignatis suis, tenementum supradictum ad totum terminum antedictum; et scriptum ipsorum Rogeri et Agnetis hic in papyro, secundum consuetudinem civitatis, per eorum recognitionem et assensum est irrotulatum; -- praefata Agnes, post mortem praedicti Rogeri Sayer, die Sancti Petri ad Vincula anno regni Edwardi nunc quarto, praedicto Rogero de Eure eam ingredi permittit, sed vi armata dictam domum hucusque occupavit, contra factum suum hic in papyro, prout moris est, irrotulatum; -- et petit super hoc discretionem Majoris et Aldermannorum.

Et super hoc, praeceptum fuit Vicecomitibus per Majorem, quod scire facerent dictae Agneti quod sit in Camera praedicta ad certam diem, ostensura si quid pro se haberet, aut dicere sciret, quare praefatus Rogerus de Eure tenementum suum gaudere non deberet, etc. Et Vicecomes testabatur praemunitionem ter per vices praefatae Agneti factum, et ipsa non venit, etc. Et quia videtur Majori et Aldermannis quod cognitiones hic in papyro factae per viros et eorum uxores, ut praemittitur, irritarentur nisi recipientes hujusmodi tenementa ad terminum annorum termino suo uti possent et gaudere, -- concordatum est per Thomam Romayne,⁽¹⁶⁾ Majorem, Nicholaum de Farendone, J. de Wengrave, J. de Lincolnia, W. Servat, Simonem de Paris, Nicholaum Picot, J. de Wyndesore, Willelmum de Leire, Willelmum Trent, Thomam Sely, et Simonem Bolet, Aldermannos, quod praedicta Agnes a praedicto tenemento amoveatur, et quod praedictus Rogerus de Eure in eodem tenemento quo fuit tempore quo dicti Rogerus Sayer et Agnes dictum tenementum eidem Rogero dimiserunt.

Idcirco praeceptum est Vicecomitibus, quod dictum Rogerum de Eure reponant in dictum tenementum ad terminum suum tenendum, etc., salvo jure cujuslibet, etc. (Liber Albus 338-40)
 
 
 

1464

"Act enabling Ann Duchess of Exeter to act as a Woman-Sole during the Attainder of her Husband, &c."

42. The Kyng, our Soverayne Lord, of grete zele and tendre affection which he hath unto his entierly welbiloved suster Anne, wyf to Henry late Duke of Excestre, graunteth of his grace especiall, ordeyneth, stablisseth and enacteth, by th'advice and assent of the Lordes Spirituell and Temporel, and Commens in this Parlement assembled, and by auctorite of the same; that all his Letters Patentes, and all other Grauntes, Yeftes and Feoffementes, made to hir afore this tyme, or hereafter to be made to hir, duryng the life of hir seid Husbond, of eny Lordships, Maners, Londes, Tenementes, Possessions, Enheritamentz, Goodes or Catelles, be to hir self oonly available, good and effectuell, as if she had be or were woman soule, tymes of the makyng of the seid Letters Patentes Grauntes, Yeftes and Feoffementes, she to have and to hold theym as woman soule, oonly to hir owne use, withoute lette empechement or clayme of the Kyng or his heires, Shirrefs, Eschetours, or eny other the Kynges Officers or Mynistres: the forfeiture of the seid Henry, or eny Acte of atteyndre by Parlement ayenst hym afore this tyme made, notwithstondyng. And that the Kyng and his heires by the auctorite aforeseid be excluded to aske, clayme or have, of or ayenst the seid Anne, any profitte or availe of or in eny of the premisses, by reason of the seid forfeiture or Acte of atteyndre. And that by the auctorite aforeseid, no maner estat, possession, title or interesse, be, growe, or come to the seid Henry in eny of the premissez, by reason of eny of the seid Letters Pantentes, Yiftes, Grauntes or Feoffementes. And also to be able by the seid auctorite, to sue in hir name soule, by Writtes, Billes or Playntes, for almaner Fermes, Rentes, Goodes, Catelles and Dettes, due or belongyng to the seid Henry, the 1111^th day of Marche, the first yere of the reigne of our seid Soverayne Lord, or after, and to the Kyng, ne to other to his useas yet not paied ne delyvered, as she myght sue yf they were due or bilongyng to hir self, to have as a woman soule, she to have theym soule to hir owne use. And also to be able by the seid auctorite, to sue in her owne name soule, almaner of actions as the case shall require, for all thinges that to hir his hereaftyer shal be nedefull to sue ayenst eny persone, for or by reason of eny of the premisses or otherwise. And also to be able by the seid auctorite, to plede and be impleded in every of the Kynges Courtes, and all other Courtes and places, in almaner suytes and actions, aswell realx as personelx and mixt, in hir owne name oonly, by the name of Anne Duches of Excestre. And that all Releases, Feoffementes, Yiftes, Grauntes, Obligations, Acquittauncez, Leases, and all other thinges to be made hereafter by or to the seid Anne, duryng the life of her seid husbond, be of the same force and effect, as they shuld be if she were or had been soule woman at the tyme of the makyng of theym; hir seid husbond noon interesse, right, title, advaile ne benefice, to have in noon of the premisses. And that by the seid auctorite, all Releases, Acquitaunces and Grauntes, made or to be made by the seid Henry, duryng the tyme of the seid atteyndre of hym, shal be utterly voide and nought. Savyng to all the Kynges Liege People, their Heires and Executours, their titles, rightes, entrees and interesses in all the premisses, such as they had or shall have, tymes of the Yiftes and Grauntes threof made or to be made to the seid Anne: the seid late Duc, and such persones as have afore this tyme made or hereafter shall make, eny maner Estate, Yift, Lese or Graunte, of eny Londes, Tenementes, Rentes, Possessions, Goodes or Catalles, or other thing to the seid Anne, alwey except.(RP 4 Edw. IV vol. V. 548b-549a)
 

1467

Action of debt maintainable against a wife acting as a sole merchant.

Also yf eny mans wyf become dettour or plegge or by or sylle eny chaffare or vitelle or hyre eny house by hur lyfe, she to answere to hym or hur that hath cause to sue, as a woman soole marchaunt; and that an accion of dette be mayntend ayenst hur, to be conceyved after the custom of the seid cite, without nemyng hur housbond in the seid accyon. (Burough Customs Worcester, cap 14. 227)
 
 
 

1480-81

"The White Book at Lincoln," for former Mayor Thomas Grantham. Largely a translation of Liber Albus. A woman may have "her law."

Femina vadiat legem. And if a woman of this cite be accept to make hir law, she may make it with men or women at her pleasure, except allwey that they schall make newer there lawe ageyn ony specialte or wrytyng seeld, for vitall spendyd in houce or money takyn be tale, howse ferme or corporall sellarye, nor for money deliverd be odyr mens handys to theyr behove.(Borough Customs Lincoln, cap. 13. 227)
 

The White Book at Lincoln, for former Mayor Thomas Grantham. Largely a translation of Liber Albus. A woman following her own craft can be charged as a single woman ("sole woman").

Femina cooperta potest implacitari absque viro suo. And if ony woman that hase a husbonde use ony crafte within the cite werof hyr husbonde mellys not, sche schal be charged os a sole woman os touchyng suche thynges os longeth to hyr crafte. And yf a pleynt be takyn ageyn syche a woman, sche schall answer and plede os a sole woman, and make hyr law, and take other avauntege in courte by plee or otherwyse for hyr dyscharge. And if sche be condempnynd sche schall be commyt to preyson tyll sche be agrede with the pleyntyf. And noo godes nor catell that liongeth to hyr husbonde schall be attached for hyr nor chargyd.(Burough Customs Lincoln, cap. 32. 227.
 

1. ⁰ In fact, the term "merchant" itself, and its Middle English variants--"marchaundes," "marchaundise," "marchaundisen," "marchaundising," etc.--all enter the language between 1300 and 1450 (MED M.2 163-67).

2. ⁰ Both of these terms, of course, exist in several orthographic and linguistic variants: feme couvert, covert baroun, feme sole, woman soule, etc.

3. ⁰ This consensual power derived mainly from a series of letters from Pope Alexander III focusing on the importance of the consent of the parties involved. For an extended discussion of the role of consent and the development of late medieval marriages, see Charles Donahue, Jr., "The Canon Law on the formation of Marriage and Social Practice in the Middle Ages."

4. ⁰ For a discussion of the decline in the variety of occupations generally held by women, see Ivy Pinchbeck, Women Workers and the Industrial Revolution, 1750-1850, especially p.303.

5. ⁰ See, for example, Rowbotham, who believed that such trades "related directly to the work of women in the household because at this stage domestic and industrial life were not clearly separate" (2), and Vann, who believes that, since most women in the period married at some time, their work necessarily becomes part of their married life (195).

6. ⁰ For an excellent disussion of the early history of parliament and its attendant documentary evidence, see A. L. Brown's chapter "The Development of Parliament," in The Governance of Late Medieval England 1272-1461 (157-76). See also the very thorough introduction to H. G. Richardson's and G. O. Sayle's Rotuli Parliamentorum Hactenus Inediti, 1279-1373.

7. ⁰ Pope Alexander III, in the late twelfth century, wrote a series of decrees outlining marriage rules, including present consent, future consent, and minimum age of consent. For a succinct but thorough investigation of the development of marriage law, see Charles Donahue, Jr., "The Canon Law on the Formation of Marriage and Social Practice in the Later Middle Ages."

8. ⁰ For an excellent and succinct overview of the doctrine of unity in medieval English law, see Baker's chapter, "Marriage and its Consequences," in An Introduction to British Legal History, esp. 550-57.

9. ⁰ George Kay's Lady of the Sun: The Life and Times of Alice Perrers is an excellent study of Perrer, the social milieux in which she operated, and her effect upon the period.

10. ⁰ Perrers had, supposedly, drawn £2,000 to £3000 a year from the royal coffers, presumably as funds to increase her position in court through bribery and favoritism.

11. ⁰ As early as 1200, an essoiner, or excusator, was a person hired to stand for the principles in a case in court in the eventuality that those principles could not appear.

12. ⁰ See, for example, Liber Albus 98 and 103, for 2 such suits for abortion by battery, 1 by woman, one by man.

13. ⁰ Baker's Manual of Law French defines free-bench (frank bank) as a "dower of copyhold land held by a woman via dower. As a woman, ownership is not technically hers, but she retains the ability to keep that land as part of her dower.

14. ⁰ In such cases parties were allowed seven jurors or witnesses on their behalf; such jurors were often called "hands" and the person involved in the suit was allowed to be one of the seven "hands" on his or her own behalf.

15. ⁰ "The same day," the legal term used for sucha one day respite.

16. ⁰ Mayor of London, 1309.